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With the implementation in France of the "three-strikes" legislation and of a law providing for the administrative filtering of the web and the defense of a "civilised" Internet, the impact of recent legislation and government-issued statements about the free flow of online information are raising serious concerns. The year 2010 was difficult for several online media and their journalists targeted for office break-ins and court summons and pressured to identify their sources. For the first time, France has been added to the "Countries Under Surveillance" list.

2010: A challenging year for online journalists and their sources

In October 2010, break-ins occurred in the offices of several journalists investigating the Woerth-Bettancourt case. The Mediapart news website reported the "disappearance" of computers and hard disks containing information about the heiress to the L'Oréal empire. These thefts, as well as the phone-tapping and undercover methods used by French intelligence agents to track the site's journalists inquiring into the Karachi and Bettancourt cases, are placing the protection of sources principle in serious jeopardy.

In November 2010, Claude Guéant, who was at that time the Elysée General Secretary, lodged a "defamation" suit against Mediapart, which had accused him of being responsible for the undercover surveillance of its journalists. A few weeks earlier, several majority members had verbally harshly criticised Edwy Plenel's website. Then Health Minister Xavier Bertrand labelled the newspapers' methods as "fascist." Nadine Morano, Minister for Apprenticeship and Professional Formation, accused Mediapart of being a "gossip website."

In November 2010, news website Rue89's offices were burgled and more than 20 computers stolen. The offices of news site MyEurop info, located in the same building, were also "visited." Lastly, in June 2010, Augustin Scalbert, a Rue89 journalist, was indicted for "receiving stolen goods" for having published an article accompanying an "off-air" video clip of Nicolas Sarkozy on the France 3 TV network. The video showed the French Head of State reprimanding a studio technician for not responding to his greeting prior to an interview.

The website Bakchich.info is said to have obtained a copy of a message from a private detective agency addressed to the Elysée about the latter's own spy services. According to Nicolas Beau, the website's director, it supposedly contains "tips on how to most effectively promote the site," for "making it more middle-class and institutionalised," and for turning it into "a source with a pro-government viewpoint."

WikiLeaks: The French debate

The debate over the WikiLeaks website, which released U.S. diplomatic cables to the public via such media as Le Monde and The New York Times, aroused sharp criticism from officials in the French government. In December 2010, Eric Besson, Minister of Industry, Energy and the Digital Economy, tried to prohibit WikiLeaks from being hosted France. The Minister asked the General Council of Industry, Energy and Technology (CGIET) to study what actions could be taken "to ensure that this Internet website will no longer be hosted in France." In a letter addressed to the Council, he justifies himself as follows: France cannot host Internet sites that violate the confidentiality of diplomatic relations and put in danger persons protected by diplomatic secrecy," to which he added, "One cannot host Internet sites described as criminal and rejected by other states because of attacks on their fundamental rights."

On 3 December 2010, in response to these statements, French host server OVH applied for a summary judgement against the ruling, affirming that a minister is not entitled to decide the legality of a website nor its host "location." The court has declared itself incompetent to rule on the matter and has asserted the need for an "open debate."

The French Foreign Ministry stated: "We firmly condemn the deliberate and irresponsible disclosure by the WikiLeaks site of U.S. diplomatic correspondence." The government denounced this "threat to state sovereignty." Former Minister of the Interior Brice Hortefefeux had labelled the site's action as "totalitarian."

Troubling laws for Internet freedom

Hadopi: The fight against illegal file downloading (Internet piracy)

HADOPI, the "Creation and Internet" law, is a "law promoting the distribution and protection of creative works on the Internet" and its aim is to facilitate the fight against illegal downloading by expanding the availability of legally downloadable material and by setting up a "graduated response" system against Internet users who download files containing copyrighted material. Such users receive a first email warning. If they recommit the offence within a six-month period, a registered letter and a second email warning are sent. If the Internet user continues the pirating practices, after the matter is referred to the Public Prosecutor's office by Hadopi's Copyright Protection Commission and a judge's decision is rendered, the user may be penalised by a suspension of his or her connection for a one-month period.

Reporters Without Borders believes that Internet access is a fundamental right and that the recourse of suspending a connection is a violation of the public's freedom to access information. Moreover the law known more precisely by the acronym Hadopi 2, is a complement to the French law concerning the Penal Protection of Literary and Artistic Property on the Internet ("Hadopi 1"), which had been partially censored by the French Constitutional Council. In its 10 June 2009 decision on Hadopi 1, the Council asserted that restricting Internet access is an abuse of freedom of expression: "Taking into account the terms of Article 11 of the Declaration of the Rights of Man and Citizens of 1789: 'The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, print freely, except that he must answer for abuse of this freedom as determined by law'" [and that] nowadays, in light of the generalised development of the Internet and its importance for participation in democratic life and the expression of ideas and opinions, [such right implies] the online public's freedom to access these communication services." They also stipulated that only a judge can restrict Internet access.

In order to bypass the Council's decision, the French government promulgated the non-censored articles of Hadopi 1, and introduced a complementary text (Hadopi 2) providing for a simplified procedure which enables a single judge to render a decision without the accused being present and by court order. If the judge should then decide to cut off Internet access, such procedure does not guarantee the rights of the defence: the judge renders his verdict without open debate, upon examining the case and without having to explain the basis of his decision.

The main Hadopi provisions raising concern are the following:

The judge's intervention does not provide sufficient judicial guarantees;

The Internet user will be presumed guilty and must prove his innocence, reversing the burden of proof;

He shall have no possible recourse against sanctions;

If his Internet connection is hacked and used by a third party to download files, the user will be penalised by having his connection suspended for one month for "characterised negligence in the surveillance of Internet access," and could end up having to pay a fine of about USD 1,900. This provision, which imposes on users the obligation to secure their own networks, does not take into account the diverse levels of the French population's computer knowledge;

If one member of a household engages in illegal downloading activities, the entire household's Internet access will be cut off;

The law is already obsolete: the streaming of file content is not considered.

Quadrature du Net, an advocacy group promoting online freedom, calls Hadopi a would-be "punishing machine" (...) "without any consequence" on culture or its dissemination on the Internet.

In an effort to make the provision more effective, in the night of 1 to 2 February 2011, the French National Assembly adopted an amendment that would allow Hadopi to grant subsidies to the private sector to help Hadopi carry out its mission "of monitoring the licit and illicit use of copyright-protected works online" (Art. L331-13 of the French Intellectual Property Code). This amendment now makes it possible to pay private-sector companies to conduct online surveillance and filtering. Sixty Socialist and Communist Party deputies and as many senators have referred this amendment, which they called a "legislative knight" to the Constitutional Council for a validity ruling. The opposition has denounced the perverse effects of the law, asserting that "the news services of the United States and the United Kingdom have complained to their French counterparts, that the law had contributed to the soaring use of encryption among Internet users, making the fight against terrorism more complicated." The French Law Commission and certain majority deputies also oppose the adoption of this text.

Net freedom: A victim of the debate on security issues?

The French Parliament enacted the "law on guidelines and programming for the performance of internal security" (Loppsi 2) on Tuesday 8 February 2011, by 171 to 151 votes. Under the pretext of fighting child pornography, Article 4 of the law institutionalises an administrative filtering of the Web, without a court order. Article 2 is likely to criminalise the use of pseudonyms on the Internet, and Article 23 permits cybersearches.

Loppsi 2 poses a critical threat to freedom of expression, because it provides the option of censuring content deemed suspect by implementing an administrative filtering of the web. Yet filtering often results in over-blocking, which can drag into its net websites or pages whose content has nothing to do with that which is covered by the law, as well as slow down bandwidth speed.

Article 4 provides for the blocking of websites containing "pornographic photos or representations of minors" by Internet service providers. A "black list" drawn up by the Central Office for the Fight Against Criminality Connected with Information Technology and Communication, reporting to the Ministry of the Interior, will be delivered to Internet service providers in France so that they can censor the sites concerned. The fight against child pornography is totally legitimate. However, the arbitrary and non-transparent nature of the chosen procedure, which excludes any control by an independent judge, is raising genuine concern.

In addition, there is a real danger that the implementation of a filtering system may be extended to matters totally unrelated to child pornography. Once the "psychological threshold" has been exceeded, the filtering could be extended to include other offences such as piracy, defamation and insulting the president. The French Association for Internet Names and Cooperation (AFNI) shares this fear that the filtering might be extended to other domains than the fight against child pornography.

The effectiveness of filtering technology has already been questioned in numerous reports. A 3 July 2009 "Study on the impact of blocking child pornography websites" commissioned by the French Federation of Telecoms and Electronic Communications claims that such devices do not prevent Internet users who exchange child pornography content from circumventing the filtering system. Reporters Without Borders believes that withdrawal of content at the source by website hosts is a much more targeted and better way to tackle online child pornography.

According to the "Ange Bleu" association, which combats paedophilia, Loppsi is an "ineffective," counter-productive" and "dangerous" law that uses the pretext of protecting children "as a Trojan horse for generalised online filtering."

Filtering-related precedents, particularly in Australia, have confirmed fears that this practice might become widespread. In February 2011, the United States Department of Homeland Security blocked more than 80,000 websites, including blogs and vendor sites, in an attempt to seize ten domain names suspected of sheltering paedophilia websites. It took three days to straighten out the error. Some countries, including Germany, reversed course and decided to abandon similar projects.

Article 23 of that law, which contains no guarantee of source confidentiality, authorises the police to install remotely-introduced spyware in the suspects' computers under an investigating judge's supervision. In the course of their investigation, should the authorities discover an offence totally unrelated to the purpose of the spyware installation, the suspects could still be prosecuted for that offence.

Article 2 of the proposed law would make identify theft punishable by a fine of up to about USD 20,800 and a prison sentence, and would criminalise the online use of pseudonyms or the creation of satirical profiles of known people.

On 15 February 2011, Social and Communist groups in the National Assembly and Senate challenged the constitutionality of the Loppsi 2 domestic security law before the Constitutional Court. The deputies and senators mainly took issue with Article 4. They argue that the text "does not provide sufficient guarantees against the possibility of arbitrary violations of freedom of expression."

Good resolutions for 2011?

A "French National Council of Digital Technology" and Hadopi 3: A seductive approach

The government has clearly indicated its desire to "spruce up" the image of an unpopular law. During a meeting at the Elysée on 16 December 2010 organised by the President of the French Republic to which Internet personalities, entrepreneurs and influential bloggers were invited, Nicolas Sarkozy is thought to have suggested creating a "Hadopi 3" in order to make the law "more appealing."

The Head of State also allegedly expressed his wish to create a French National Council of Digital Technology (CNN), which would have only an advisory status and would be consulted with regard to any legislation related to digital technology or the Internet. Its apparent objective would be to improve the dialogue between politicians, the Internet sector, and the new technologies. In a report obtained by Agence France-Presse on 25 February 2011, Pierre Kosciusko-Morizet, whom the French government appointed to spearhead consultations in the aim of setting up the Council, explained that the CNN must "address one of the criticisms issued by the digital sector: the impression of a lack of recognition of the sector's influence," that it "must have a forward-looking role in helping to define the digital policy" of France and advise the authorities "as far upstream as possible" about "any proposed legislation." The Loppsi and Hadopi laws are given as "examples in which digital economy actors were opposed, often vigorously so, to a public policy initiated by the government or parliament." The report's author recommends that members of the CNN be elected and that the Council be funded by the state and attached to the Office of the Prime Minister.

Net neutrality in jeopardy

On Tuesday 8 February 2011, in a speech on the digital economy given during parliamentary meetings, Eric Besson cast doubt on the future of Net neutrality. Under the pretext of a likely increase in Internet traffic, the Minister called for that traffic to be regulated and for abandoning the Net's absolute neutrality principle. He stated that he wanted content providers to pay for access, arguing that "absolute neutrality would impede the growth of services and undermine the objective that it seeks to pursue." He added that this "neutrality absolutism would mean the end of certain types of services, such as IP telephony or IP television. These statements are inconsistent with the report submitted by deputies Laure de La Raudière (UMP) and Corinne Erhel (PS), whose initiative Eric Besson "had welcomed."

In April 2008, Eric Besson, then Secretary of State for the Digital Economy, nonetheless had declared: "Clearly, I will not be the Minister of Internet castration."

The bill introduced by Socialist deputy Christian Paul, which called for "making Net neutrality a principle and not the exception" and "prohibiting discriminations associated with content, or with those who send or receive digital data exchanges," was defeated by one vote in the French National Assembly on 1 March 2011. The government had issued an unfavourable opinion on the full text.

Reporters Without Borders regrets that this proposed law guaranteeing Net neutrality and providing a framework for the filtering system introduced by Loppsi, was apparently not adopted.

An international conference on online freedom of expression initiated by Bernard Kouchner, then French Minister of Foreign Affairs, in partnership with his Dutch counterpart, has suspended his meetings, which have not resumed since the ministerial reshuffling in France and the Netherlands. The latest meeting, initially scheduled for 15 October 2010, was postponed until an undetermined date. This postponement followed arduous negotiations between the various States involved about the content of this conference's final statement and the very definition of online freedom of expression. Some countries apparently had reservations about the "hadopising" nature of this statement.

In addition, a few days before the conference, the Quadrature du Net had published a letter to the Head of State addressed to Bernard Kouchner and containing some recommendations on the conference content. Nicolas Sarkozy asked his Minister to ensure the promotion of a "civilised Internet" and to make this conference "an occasion to promote balanced regulation initiatives taken by France during the past three years, especially the Hadopi law in the field of copyright.".

In a 2007 speech, Nicolas Sarkozy had already asserted that "France (should) reclaim its position as a leading country in the campaign to civilise the new networks."

In December 2010, President Nicolas Sarkozy stated that he was planning to assemble the main Internet actors within the framework of the G8 meeting in Deauville, scheduled for May 2011. Rather than directly tackle the online freedom of expression issue, the debates of the upcoming G8 and G20 meetings will focus on the challenges posed by issues relating to copyrights.

The French government apparently favours a security-oriented approach as it relates to copyright protection, to the detriment of freedom of expression and information access. The time when Hillary Clinton's speech called for Net freedom to be the cornerstone of U.S. diplomacy still inspired emulation in the French Foreign Office already seems to have been forgotten. France has missed an opportunity to take a position of leadership in a debate that has become even more crucial since the Arab world's recent uprisings in which the Internet and social networks played a major role. Tunisian and Egyptian netizens, however, have successfully shown how truly essential online freedom of expression has become.